Brazil Appeals Court Rules

Drug Possession not a Crime

Author: Martin
Date: Jun 3, 2008
Views: 1590

At the end of March, a Brazilian appeals court in São Paulo declared that
possession of drugs for personal use is not a criminal offense. Several
lower courts had previously ruled in the same way, but the ruling from the
São Paulo Justice Court's 6th Criminal Chamber marked the first time an
appeals court there had found Brazil's drug law unconstitutional as it
pertains to simple drug possession.

The ruling came in the case of Ronaldo Lopes, who was arrested with 7.7
grams of cocaine in three separate bags on the night before Carnival began
in 2007. Lopes acknowledged that the drugs were his and said they were for
his personal use. Lopes was sentenced to 2 1/2 years in prison as a drug
trafficker. But the appeals court judges threw out the trafficking charge
since it was based on an anonymous complaint. It then threw out the
possession charge, saying it was unconstitutional.
In his opinion in the case, Judge José Henrique Rodrigues Torres said the
law criminalizing drug possession for personal use was invalid because it
violated the constitutional principles of harm (there is no harm to third
parties), privacy (it is a personal choice), and equality (possessing
alcohol is not a crime). "One cannot admit any state intervention, mainly
repressive and of penal character, in the realm of personal choice,
especially when it comes to legislating morality," he said.
The ruling applies only to Lopes, but can be used as a precedent in other
court proceedings. There is no word yet on whether the Brazilian
government will appeal.

The ruling comes nearly two years after Brazil changed its drug laws to
depenalize -- but not decriminalize -- drug possession for personal use.
Under that law, drug possession is still a criminal offense, but penalties
are limited to fines, fees, education, and community service.
In his opinion, Torres cited earlier decisions by now retired Judge Maria
Lúcia Karam, who told the Chronicle this week the appeals court decision
was "praiseworthy" and "significant."

"The praiseworthy ruling by a Court of Appeals in São Paulo, proclaiming
the unconstitutionality of the Brazilian law that criminalizes drug
possession for personal use, is a remarkable moment in Brazil's judicial
history," she said. "This is a decision of great significance. This is the
first time a Brazilian appeals court has clearly stated that a law that
criminalizes drug possession for personal use contradicts the Constitution
and the international declarations of human rights. This is the first time
that a Brazilian appeals court has clearly stated that drug possession for
personal use is a behavior that matters only to the individual, to his or
her privacy, and to his or her personal choices. This is the first time
that a Brazilian appeals court has clearly stated that the state is not
authorized to interfere within this sphere of privacy. This is the first
time that a Brazilian appeals court has clearly stated that the individual
shall be free to be and to do whatever he or she wants, while behaving in
such a way that does not affect any rights of others," Karam said.
The decision should reverberate through the Brazilian courts, said Karam.
"This is a real precedent, and it should encourage other Brazilian courts
and judges to also accomplish their main mission, that is to guarantee
liberty and all other fundamental rights of individuals, to actually
respect the Constitution and the international declarations of human
rights," she said.

"This is good news," agreed Luiz Paulo Guanabara, head of the Brazilian
drug reform group Psicotropicus. "The 2006 drug law reform did away with
prison sentences for people possessing illicit drugs for personal use, but
under that law, drug users were still criminals who could be penalized by
community service or fines and fees. This is an advance," he said.
"Amazing," said Martín Arangurí Soto, a graduate student in political
science in São Paulo and Drug War Chronicle's Spanish and Portuguese
translator. "The Justice Court of São Paulo is a very conservative court.
It was among the ones that banned the marijuana marches at the beginning
of this month," he noted. "Does this mean the marijuana march is on next
year? They won't be able to argue that it is an 'apology for drug use,'
because possessing for personal use is not a crime anymore."
Drug law reform is a work in process in Brazil, said Guanabara. "This is a
timely decision because the new law is not carved in stone and must be
amended to fit social reality. Now we have the chance to quit unjustly
criminalizing people for consuming this or that substance or carrying
illicit drugs for personal use."

One of the remaining issues to be resolved is what quantity of drugs is
considered personal use, said Guanabara. "There is no set quantity to
distinguish users from dealers," he explained. "This ruling is notable
because the defendant was caught carrying more than seven grams of
cocaine. If he had lived in a slum and been detained with that same amount
he would have been considered a drug dealer and subjected to the same
penalties as someone caught with 10 kilos of cocaine, which is one of the
more irrational aspects of our drug laws."
Beyond the impact the ruling could have on the lives of drug users, it
also shows how far Brazil has come, said Guanabara. "The drug policy
discussion has reached the mainstream in Brazil," he said. "When
Psicotropicus was created just a few years ago, the topic was taboo and
people who spoke in favor of drug policy reform were regarded as lunatics
or advocates against the 'indisputable' crime of possessing, using or
selling the forbidden drugs." 

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